State ex rel. Gold v. Equity General Insurance

Bobbitt, J. Only a “party aggrieved” may appeal from the superior court to the Supreme Court. G.S. 1-271; Langley v. Gore, 242 N.C. 302, 87 S.E. 2d 519. “(A) ‘party aggrieved’ is one whose right has been directly and injuriously affected by the action of the court.” McIntosh, North Carolina Practice and Procedure, § 675; Freeman v. Thompson, 216 N.C. 484, 5 S.E. 2d 434; In re Application for Reassignment, 247 N.C. 413, 421, 101 S.E. 2d 359. “An appeal may be taken from every judicial order or determination of a judge of a superior court, upon or involving a matter of law or legal inference, . . . which affects a substantial right claimed in any action or proceeding . . .” G.S. 1-277; Veazey v. Durham, 231 N.C. 357, 57 S.E. 2d 377; Buick Co. v. General Motors Corp., 251 N.C. 201, 110 S.E. 2d 870. “A special appearance by a defendant is for the purpose of testing [150] the jurisdiction of the court over his person.” (Our italics) In re Blalock, 233 N.C. 493, 503, 64 S.E. 2d 848, and cases cited; McIntosh, North Carolina Practice and Procedure, § 328. The Colorado banks are not named as parties to this action. No attempt has been made to serve process upon them. Judge Bickett found as a fact they had not been served with process. Moreover, Judge Bickett’s order contains this provision: . . and the Court being of the opinion that it does not have jurisdiction over the American National Bank of Denver, Colorado, or the First Bank of Brighton, Brighton, Colorado, or over any property within the possession of said banks, . . .” Appellants rely largely on First Nat. Bank of Rome v. First Nat. Bank of Jasper (C.C.A. 5th), 264 F. 83, affirmed by the United States Supreme Court in Bank of Jasper v. First Nat. Bank, 258 U.S. 112, 42 S. Ct. 202, 66 L. Ed. 490. But consideration of these decisions illustrates the fallacy of appellants’ position. In the cited case, the action was instituted by the (Rome) Georgia bank against the (Jasper) Florida bank in the United States District Court in Florida to recover as owner and holder of certificates of deposit issued by the Florida bank. The Florida bank pleaded as res judicata decrees previously entered in a Florida State Court. Under these decrees, the Florida bank was required to pay the funds represented by these certificates of deposit to Florida claimants, plaintiffs in an equity suit. The Georgia bank, also two other Georgia corporations, were named as defendants in said Florida equity suit. The purported service of process on these Georgia corporations was by publication. It was held the Georgia bank was not barred by the decrees in the prior Florida equity suit. The ground of decision was that the service of process by publication was insufficient to confer jurisdiction. The opinion of Mr. Justice Brandéis (258 U.S. 112) concludes: “. . . Such certificates are merely promissory notes of the Jasper bank, payable like unsecured notes of individuals, out of general assets. Like other notes they are negotiable and are payable only upon surrender of the instrument properly endorsed. There is not even an allegation either that the transfer to the First National Bank (of Rome) had been made after maturity of the certificates or that the endorsee took them with notice of the fraud. “As neither the certificates of deposit nor the holder thereof were within the State of Florida, its courts could not — in the absence of consent — acquire jurisdiction to determine the liability of maker to holder.” [151] The decision, in gist, was this: The Georgia bank, named as defendant in the Florida equity suit, had no property in Florida affording the basis for service of summons by publication, Hence, as to the Georgia bank, the decrees in the Florida equity suit wer§ void for lack of jurisdiction and did not constitute res judicata. Here, no contention is made by the Ancillary Receiver or by the intervenor that the deposit in the North Carolina National Bank constitutes property in this State owned by the Colorado banks affording a basis for service of process upon them by publication. Appellants are not parties or named as parties to this action. The order from which they attempt to appeal declares they have not been served with process and disavows any attempt to exercise jurisdiction over them. In short, the exceptions and assignments of error on this purported appeal are presented by strangers to the action. Appellants’ appearance was and is “specially, solely and only for the purpose of challenging the jurisdiction of the Court,” notwithstanding the court has not asserted or attempted to assert jurisdiction over them. Their position is anomalous and untenable. In the superior court, appellants filed no affidavit, made no motion and asserted no rights. They presented nothing that invoked a ruling by the court as to them. Their counsel, orally, simply challenged or questioned the jurisdiction of the court. Unless and until appellants are made or voluntarily become parties to this action, they are not bound by orders and decrees entered herein. If appellants are entitled to recover on said certificates of deposit from the North Carolina National Bank, adequate procedural remedies are available. As of now, nothing appears to show they are “aggrieved” by Judge Bickett’s order within the meaning of G.S. 1-271. Hence, appellants’ purported appeal is dismissed. It is noted: The North Carolina National Bank did not appeal from Judge Bickett’s order. However, no order has been made purporting to adjudicate the ownership of the $125,000.00 represented by said certificates of deposit or requiring the North Carolina National Bank to make payment thereof, in whole or in part, to anybody. Appeal dismissed.